The decision of the Supreme Court (SC) regarding the review of defection decision of the lawmakers gave considerable rise to dissension particularly amongst the lawyers. The lawyers were not alone as social right activists, politicians of all shades and some sections of the media also were reported to be quite upset with the verdict. As a result the Supreme Court Bar Association (SCBA) filed a petition in the SC for a review of the court’s decision given on 17 May, 2022 on the interpretation of Article 63-A, which pertains to the status of defecting lawmakers. It may be recollected that a larger bench of SC had given a 3-2 split decision on a presidential reference seeking the court’s interpretation of Article 63-A, with a majority of the judges stating that the votes of lawmakers who defected from their parties would not be counted in the four instances outlined under the article. These four instances were mentioned to be the election of the prime minister and chief minister, a vote of confidence or no-confidence, a Constitution amendment bill and a money bill.
The SCBA petition is based on their contention that the interpretation of the SC contained in paragraphs one to three of its order was not in accordance with the letter and spirit, as well as the system of parliamentary democracy established by the Constitution. It may be kept in mind that in the first two paragraphs of its order the SC elaborated on whether Article 63-A had a limited or broad, purpose-oriented interpretation. The SC maintained that the provision could not be read and applied in isolation and in a manner as though it is aloof from, or indifferent to, whatever else is provided in the Constitution. In addition the SC paragraphs described defections as a cancer afflicting the body politic adding that they cannot be countenanced and Article 63-A must be interpreted in a purposive and robust manner.
The decision of the SC mentioned that the pith and substance of Article 63-A is to enforce the fundamental right of political parties under Article 17. It must therefore be interpreted and applied in a broad manner, consistent with fundamental rights. In the third paragraph, the SC explained whether the votes of defecting lawmakers should be counted and given equal weightage. The SC said the vote of any member of a parliamentary party in a house that is cast contrary to any direction issued by the latter in terms of para (b) of clause (1) of Article 63-A cannot be counted and must be disregarded and this is so regardless of whether the party head, subsequent to such vote, proceeds to take, or refrains from taking, action that would result in a declaration of defection.
On the other hand the SCBA said in its petition that in reaching the conclusion that the votes of defecting lawmakers were not to be counted, the historical background and evolution of Article 63-A … had escaped the honourable court’s attention. In this connection, the petition shared provisions of the Political Parties Act, which it said provided for the disqualification of lawmakers prior to the Constitution. It also mentioned Article 96 of the Constitution, which the petition said provided for disregarding votes of defecting lawmakers for the first time. It was later replaced by Article 95, which omitted the clause for disregarding defecting votes. Eventually, Article 63-A was inserted in the Constitution, the petition said, as it went on to elaborate on the provision. The petition maintained that it is clear from the above, disregarding of defective votes was first incorporated into our constitutional framework at the time of commencement of the Constitution, in terms of the erstwhile Article 96.
Earlier what had happened that ahead of its ouster, the PTI government had filed a presidential reference for the interpretation of Article 63-A, asking the top court about the legal status of the vote of party members when they are clearly involved in horse-trading and change their loyalties in exchange for money. The reference was filed at a time when the then-opposition claimed the support of several dissident PTI lawmakers ahead of voting on the no-confidence resolution against then-prime minister Imran Khan. Eventually, the dissident lawmakers’ votes were not needed in the removal of Imran Khan as the opposition managed to stitch together support from government-allied political parties. However, the role of dissident lawmakers was crucial in the election of opposition candidate Hamza Shehbaz as the Punjab chief minister who bagged 197 votes, including 25 votes cast by PTI dissidents. Consequently, the SC declared by a majority verdict of three to two that votes cast by legislators in violation of their party’s stance must not be taken into account while determining the outcome of a motion since Article 63-A of the Constitution was meant to protect the fundamental rights of a parliamentary party, and not those of defectors. Now it is to be seen that how matters would turn around as the outcome of this petition is keenly awaited. TW
Review of defection decision
ByHoor Asrar Rauf
A national swimming champion and recently Graduated from UCF-USA in Hospitality and Event Management
Dated
July 8, 2022
The decision of the Supreme Court (SC) regarding the review of defection decision of the lawmakers gave considerable rise to dissension particularly amongst the lawyers. The lawyers were not alone as social right activists, politicians of all shades and some sections of the media also were reported to be quite upset with the verdict. As a result the Supreme Court Bar Association (SCBA) filed a petition in the SC for a review of the court’s decision given on 17 May, 2022 on the interpretation of Article 63-A, which pertains to the status of defecting lawmakers. It may be recollected that a larger bench of SC had given a 3-2 split decision on a presidential reference seeking the court’s interpretation of Article 63-A, with a majority of the judges stating that the votes of lawmakers who defected from their parties would not be counted in the four instances outlined under the article. These four instances were mentioned to be the election of the prime minister and chief minister, a vote of confidence or no-confidence, a Constitution amendment bill and a money bill.
The SCBA petition is based on their contention that the interpretation of the SC contained in paragraphs one to three of its order was not in accordance with the letter and spirit, as well as the system of parliamentary democracy established by the Constitution. It may be kept in mind that in the first two paragraphs of its order the SC elaborated on whether Article 63-A had a limited or broad, purpose-oriented interpretation. The SC maintained that the provision could not be read and applied in isolation and in a manner as though it is aloof from, or indifferent to, whatever else is provided in the Constitution. In addition the SC paragraphs described defections as a cancer afflicting the body politic adding that they cannot be countenanced and Article 63-A must be interpreted in a purposive and robust manner.
The decision of the SC mentioned that the pith and substance of Article 63-A is to enforce the fundamental right of political parties under Article 17. It must therefore be interpreted and applied in a broad manner, consistent with fundamental rights. In the third paragraph, the SC explained whether the votes of defecting lawmakers should be counted and given equal weightage. The SC said the vote of any member of a parliamentary party in a house that is cast contrary to any direction issued by the latter in terms of para (b) of clause (1) of Article 63-A cannot be counted and must be disregarded and this is so regardless of whether the party head, subsequent to such vote, proceeds to take, or refrains from taking, action that would result in a declaration of defection.
On the other hand the SCBA said in its petition that in reaching the conclusion that the votes of defecting lawmakers were not to be counted, the historical background and evolution of Article 63-A … had escaped the honourable court’s attention. In this connection, the petition shared provisions of the Political Parties Act, which it said provided for the disqualification of lawmakers prior to the Constitution. It also mentioned Article 96 of the Constitution, which the petition said provided for disregarding votes of defecting lawmakers for the first time. It was later replaced by Article 95, which omitted the clause for disregarding defecting votes. Eventually, Article 63-A was inserted in the Constitution, the petition said, as it went on to elaborate on the provision. The petition maintained that it is clear from the above, disregarding of defective votes was first incorporated into our constitutional framework at the time of commencement of the Constitution, in terms of the erstwhile Article 96.
Earlier what had happened that ahead of its ouster, the PTI government had filed a presidential reference for the interpretation of Article 63-A, asking the top court about the legal status of the vote of party members when they are clearly involved in horse-trading and change their loyalties in exchange for money. The reference was filed at a time when the then-opposition claimed the support of several dissident PTI lawmakers ahead of voting on the no-confidence resolution against then-prime minister Imran Khan. Eventually, the dissident lawmakers’ votes were not needed in the removal of Imran Khan as the opposition managed to stitch together support from government-allied political parties. However, the role of dissident lawmakers was crucial in the election of opposition candidate Hamza Shehbaz as the Punjab chief minister who bagged 197 votes, including 25 votes cast by PTI dissidents. Consequently, the SC declared by a majority verdict of three to two that votes cast by legislators in violation of their party’s stance must not be taken into account while determining the outcome of a motion since Article 63-A of the Constitution was meant to protect the fundamental rights of a parliamentary party, and not those of defectors. Now it is to be seen that how matters would turn around as the outcome of this petition is keenly awaited. TW
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